UNESCO resolution calling into question Israel’s jurisdiction over west Jerusalem

Published: 10 May 2017 Author: Stefan Talmon

In March 2017, when U.S. President Donald Trump was considering relocating the United States Embassy from Tel Aviv to the western part of Jerusalem, Algeria, Egypt, Lebanon, Morocco, Oman, Qatar and Sudan submitted a draft resolution on “Occupied Palestine” to be adopted by the 58-member Executive Board of the United Nations Educational, Scientific and Cultural Organization (UNESCO) at its 201st session in Paris from 19 April to 5 May 2017. The text of the draft resolution provided, inter alia, that:

“any action taken by Israel, the occupying power, to impose its laws, jurisdiction, and administration on the city of Jerusalem, are illegal and therefore null and void and have no validity whatsoever.”

This wording was in line with the resolutions on Jerusalem that had been adopted by the United Nations General Assembly for many years, but was a first for a UNESCO resolution. While previous UNESCO resolutions expressly “aimed at the safeguarding of the Cultural Heritage of East Jerusalem”, and were concerned with “ongoing Israeli practices in East Jerusalem” or the “Old City of Jerusalem”, the draft resolution marked the first time that Arab States asked the UNESCO Executive Board to reject Israel’s jurisdiction over the western part of the city and to declare its legal and administrative acts in all of Jerusalem null and void. Israel considered this to be unacceptable.

At the beginning of April 2017 reports appeared in the Israeli media accusing Germany of having agreed with the Arab sponsors of the draft resolution on a softening of the wording of the resolution in exchange for a commitment by the European Union (EU) Member States on the Executive Board not to vote against the revised resolution, that is, either to support it or abstain. The new text provided, in the relevant paragraph, that:

“all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the ‘basic law’ on Jerusalem, are null and void and must be rescinded forthwith.”

The “Basic Law: Jerusalem, Capital of Israel” had been adopted on 30 July 1980. It declared Jerusalem, “complete and united”, as the capital of Israel. The Basic Law also described the territory of the Jerusalem Municipality as comprising both west and east Jerusalem and parts of the West Bank. The Basic Law constitutes the formal act of annexation of the eastern part of Jerusalem. Israel is usually referred to as “the Occupying Power” only with regard to the West Bank, including east Jerusalem – territory which was captured by Israel during the Six Day War in June 1967. No reference is made to the term “Occupying Power” with regard to the territories, including west Jerusalem, captured by Israel during the first Israeli-Arab War in 1948. Against this background, the revised resolution could have been interpreted as referring only to legislative and administrative measures and actions by Israel with regard to occupied east Jerusalem; thus leaving Israeli jurisdiction over west Jerusalem intact.

The revised draft resolution was adopted at the UNESCO Executive Board on 5 May 2017 by 22 votes in favour, 10 votes against and 23 abstentions, with three States being absent at the time of voting. In the end – like in previous years – Germany voted against the resolution on “Occupied Palestine”, while one of the 11 EU Member States on the Executive Board voted in favour and four abstained.

It is not clear what, in the end, motivated Germany to vote against the resolution. It could not have been the text of the paragraph itself that was objectionable as Germany had voted for many years in favour of United Nations General Assembly resolutions employing almost the same wording as the relevant paragraph in the final UNESCO Executive Board resolution. It might have been a case of Israeli diplomatic and public pressure or simply the fact that the German Government considered general legal statements on the status of Jerusalem to be outside of UNESCO’s (limited) mandate of “promoting collaboration among the nations through education, science and culture.”

Category: Territorial sovereignty

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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